In re: Wage Determination 94-2526 as applied to
the Flight Simulator/Instructor (Pilot) job classification
on a service contract at Sheppard AFB, Texas
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Petitioner: James A. Machos, Lear Siegler Services, Inc., Sheppard AFB, Texas
For the Respondent: Ellen R. Edmond, Esq., Douglas J. Davidson, Esq., Steven J. Mandel, Esq., U.S. Department of Labor, Washington, D.C.
DECISION AND ORDER OF REMAND
Petitioner James A. Machos (Machos) is employed by Lear Siegler Services, Inc. (Lear Siegler) on a Federal service contract at Sheppard Air Force Base (AFB), Texas. Machos supervises employees classified as Flight Simulator/Instructors (Pilot), a classification we refer to in this decision as "Flight Instructor." The contract is subject to the prevailing wage labor standards provisions of the McNamara-O'Hara Service Contract Act of 1965, as amended, 41 U.S.C. §351 et seq. (1994) (SCA or the Act).
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In October 1995, the Wage and Hour Division published SCA Wage Determination (WD) 94-2526 (Rev. 6), applicable to service contracts in the locality that included Sheppard AFB. The wage determination contained an hourly wage rate of $17.96 for Flight Instructors. Administrative Record (AR) Tab Q. It appears that WD 94-2526 (Rev. 6) was not updated during 1996. Subsequent revisions of WD 94-2526 were published in 1997, all with the same $17.96/hr. wage rate for Flight Instructors.1
1 The hourly wage rate of the 1995 wage determination remained at the same rate of $17.96 under subsequent revisions through 1997: WD 94-2526, Revision 7, dated May 19, 1997 (AR Tab R); Revision 8, dated July 1, 1997 (AR Tab S); and Revision 9, dated September 1, 1997 (AR Tab T). The subsequent history of Flight Instructor prevailing wage rates at Sheppard AFB since the filing of the instant appeal in 1998 has not been addressed by the parties before the Board. The $17.96 hourly wage rate was lower than the SCA prevailing rate established for Flight Instructors at other locations outside the immediate Sheppard AFB locality. See, e.g., AR Tab A Chart.
2 UNC Aviation Services merged with Lear Siegler Services around October 1997. See AR Tab D, handwritten note. In this decision, we refer to the flight training contract simply as the "Lear Siegler contract" without distinguishing between the two corporate names.
3 Where there is a collective bargaining agreement between an employer and the service employees working on a Federal service procurement contract, the Administrator is required under the Act to issue the collective bargaining agreement wage and fringe benefit rates (including prospective increases) as the minimum required rates payable to the service employees working under that contract. 41 U.S.C. §353(c).
4 Similarly, with no applicable collective bargaining agreements applicable to the other Lear Siegler sites of contract performance, "prevailing in the locality" determinations were issued by the Wage and Hour Division for application at these locations.
5 WD No. 94-2526 (Rev. 6) was applicable to the Oklahoma counties of Comanche, Cotton, Greer, Harmon, Jackson, Jefferson, Kiowa, Stephens and Tillman, and the Texas counties of Archer, Saylor, Clay, Witchita, and Wilbarger.
6 The specific duties of Flight Instructors are specified in the Wage and Hour Division's SCA Directory of Occupations (Rev. 1997) as being:
Responsible to the Pilot Supervisor for the accomplishment of ground-based training of pilots. Instructs and measures training progress of pilot students who train in the established air crew training curriculum. Conducts briefings and debriefings and counsels with pilots to develop and maintain a high level of proficiency. Provides inputs for courseware corrections and modifications and to update training policies and procedures. Assists in projects and development work as assigned.
Conducts simulator and other ground training of pilot crew members in Tanker operating procedures, including diagnosis and remediation of student problems. Performs administrative duties relative to training such as record keeping, monitoring student progress, counseling, training development and maintenance of training programs. Serves as aircraft type Pilot Subject Matter Expert for students and other personnel as required. Maintains a high level of subject knowledge, capability and expertise.
7 Machos subsequently submitted several additional requests for review of the Flight Instructor wage rate to the Wage and Hour Division after July 1997, the concerns of which are incorporated into the discussion that follows.
8 The GS pay schedule establishes the wages payable to Federal "white collar" employees.
9 These are the criteria generally employed by the Wage and Hour Division in making wage determinations. See 29 C.F.R. §4.51. Although Machos never submitted any such wage survey data, at one point he stated that prior to the outsourcing of the Flight Instructor duties, the positions were filled by Air Force captains and majors whom he contended were "comparable to a GS-13 level . . . ." AR Tab M at 2.
10 Before the BSCA was appointed in 1992, the Deputy Secretary of Labor was authorized to issue final SCA decisions. The BSCA issued final agency decisions under the Act from 1992 until the Administrative Review Board was established in May 1996.
11 When a service employee classification necessary to the performance of an SCA-covered contract is not contained in a wage determination, the Wage and Hour Division "conforms" such classification and wage rate. The procedure is not a de novo determination of a prevailing wage rate; rather the process is designed to "provide a reasonable relationship . . . between such unlisted classification and the classifications listed in the wage determination." 29 C.F.R. §4.6(2)(b)(2) (2000). For a discussion of the conformance process, see Raytheon Sys. Co., ARB Case No. 98-157, Apr. 26, 2000; COBRO Corp., ARB Case No. 97-104, July 30, 1999.
12 Of course, there is another reason for the continuing and increasing disparity between the Flight Instructor prevailing wage rate at Sheppard AFB and the other localities. During the period encompassed by Machos' challenge when the Flight Instructor wage rate at Sheppard AFB remained stagnant because BLS did not develop new wage survey data, BLS wage surveys were being conducted in these other locations. These updated surveys produced wage data that supported increases in the prevailing wage rates for Computer Systems Analyst II; using the slotting procedure, this data also was used to increase the Flight Instructor wage rate. See AR Tab A, Chart.
13 Revision 5 of the wage determination is not contained in the record; however, both Machos and the Administrator agree that $9.77 was the hourly rate for the Secretary II classification during the effective period for Revision 5.
14 Wage determinations are issued for application to contract years, which most often coincide with the Federal government's fiscal year which begins October 1. Revision 6 was issued on October 26, 1995; therefore, the wage increase for Secretary II was not applicable to the Sheppard AFB contract until the contract year commencing October 1, 1996.
15 For typical 1-year service contracts, or contracts that include an initial period of performance followed by multiple option years, each contract period is viewed as if it were a new procurement for SCA purposes and a new wage determination must be issued by the Administrator and incorporated into the procurement contract. See 29 C.F.R. §4.4(a).
16 We note, however, that Computer Systems Analysts II were not surveyed by BLS during the period in question.
17 The statutory directive to give "due consideration" to Federal employee wage rates when issuing wage determinations (41 U.S.C. §351(a)(5)) arguably provides some legislative support for relying on Federal employee wage data.